Is Fresh Take On The Voting Rights Act A 'Gold Mine'?

And now voting rights have been a hotly-contested topic for years. Last summer, the Supreme Court struck down a key section of the landmark Voting Rights Act. The court essentially passed the buck down the street. They said if the act needs to be updated, Congress has to do it. So now some congressional leaders are trying to do that. Here to tell us about the new proposal are Spencer Overton. He's a law professor at George Washington University. He previously served in the Obama administration and Justice Department and was a member of a bipartisan commission on election reform. Also with us, John Malcolm, senior legal fellow at the Heritage Foundation. That's a conservative research organization. Welcome back to both of you.

SPENCER OVERTON: Hello.

JOHN MALCOLM: Hi. Thanks.

HEADLEE: Let's start, Spencer, with a quick reminder of what exactly the Supreme Court decided last summer because they didn't strike down the entire Voting Rights Act.

OVERTON: Right. Celeste, you'll remember that originally parts of the Voting Rights Act required that all or parts of 15 states preclear their voting changes with federal officials. In other words, if they wanted to change a polling place or redraw a district, they needed to submit that to federal officials to make sure that the change wasn't discriminatory. The Supreme Court basically struck down the coverage formula that applied that to just those 15 states. It said, the formula's based on outdated data from the 1960s and '70s, and therefore, the court said it's unconstitutional.

HEADLEE: OK. So now we have this new proposal, and this was unveiled recently by both House and Senate Democrats and Republican representative, Jim Sensenbrenner. So let's take a listen to Jim Sensenbrenner here.

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REPRESENTATIVE JIM SENSENBRENNER: This bill modernizes the Voting Rights Act and will restore those protections that were gutted by the court and will ensure that every citizen has an equal opportunity to participate in our democracy.

HEADLEE: John, I assume you've taken a look at the proposal that's going forward. Do you think that Sensenbrenner is right here, that it'll ensure everyone has equal opportunity?

MALCOLM: Well, I disagree with his fundamental premise. As you pointed out, Celeste, there are still other provisions of the Voting Rights Act that were unaffected by the Shelby County decision, specifically Sections 2 and Section 3. They're permanent provisions. The Department of Justice and private parties, since the Shelby County decision, have filed cases in numerous states challenging practices under those provisions. So there's been real - no showing of need that this new coverage formula is necessary. And what's more, this new coverage formula goes well beyond the coverage formula that it purports to replace.

HEADLEE: Spencer, you wanted to weigh in here.

OVERTON: Well, actually the new coverage formula only applies to four states. The other one applied to parts or all of 15 states. It basically says, if you got five violations, voting rights violations, in the last 15 years, you're covered. So only four states - Mississippi, Georgia, Louisiana and Texas - are covered. It also has stronger protections nationwide. So states and localities nationwide now have to disclose their voting changes to deter bad activities. Sunlight is the best disinfectant. It also streamlines the process so that you can go into court and block a bad law before it's actually used in an election and harms voters.

HEADLEE: OK, well, John Malcolm...

MALCOLM: Yeah.

HEADLEE: ...We talked to you on this show back in June...

MALCOLM: Yeah.

HEADLEE: ...And this was right after the Supreme Court ruling. Let me repeat back something you said...

MALCOLM: Sure.

HEADLEE: You said, quote - Congress should step back and see how voting takes place in different jurisdictions, and over time, if necessary - and only if necessary - apply a scalpel to that and not a hatchet.

MALCOLM: That's right.

HEADLEE: So have we evaluated? Have we seen places in which we will need either a scalpel or a hatchet?

MALCOLM: Well, the Department of Justice has challenged a number of voting changes, specifically, a lot of voter ID laws, which are exempted from this legislation. And those cases are winding their way through the court systems. Spencer is partially correct in what he says in that if this coverage formula went into effect, those four states would immediately be subject to preclearance requirements. However, there isn't a mechanism set forth for bringing other jurisdictions in the future within its ambit, and those coverage formulas are quite broad. They talk about things like if the Department of Justice files any kind of an objection to a voting change, if there is low minority turnout, that can constitute a violation under very, very nebulous standards. The Department of Justice, it's easy for them to object. And frequently, their objections are unwarranted, not always, but often.

HEADLEE: If you're just joining us, we're talking about voting rights with John Malcolm, who is with the Heritage Foundation. They both served in the Justice Department. John Malcolm was deputy assistant attorney general in the Department of Justice's Criminal Division from 2001 to 2004. And also, George Washington University law professor, Spencer Overton. And, Spencer, you're itching to respond to what John just said.

OVERTON: There is a need right now. If you look at Nueces County, Texas, just in 2011, once the Latino population got up to 56 percent of the population in that area, the County commission redistricted it to ensure that Latinos wouldn't control the county commission. If you look in Augusta, Georgia, Augusta-Richmond, Georgia just in 2012, they moved the elections from November back to July when African-American turnout was 10 points lower. So we've got real problems now. These problems were prevented by preclearance, the old preclearance, and we need a similar tool to stop this type of discrimination that unfortunately persists.

HEADLEE: Let me - let me ask you, John, we had a report out this week from the Presidential Commission on...

MALCOLM: Yeah.

HEADLEE: ...Election Administration. They came out with some recommendations on how to make the voting processes easier...

MALCOLM: Yeah.

HEADLEE: ...For Americans. What were your thoughts on that report?

MALCOLM: Well, if I could briefly respond to Spencer. Of course, if there are violations of people's voting rights going on in this country, both private parties and the federal government can bring lawsuits to challenge those under Section 2 or Section 3. If they prove a violation of Section 3, as the government did, for instance, against the city of Evergreen in Alabama, a court can re-impose preclearance requirements. So there are tools available. Look, in terms of the Presidential Advisory Commission, there was a lot to like. They talked about extending online registration. If that's done in some way in which you can verify that the person online is indeed a registered voter, that's a good thing. They talked about upgrading technology.

HEADLEE: The voting equipment, right?

MALCOLM: Yeah, updating voting equipment, also, updating technology to look across databases to purge voter rolls of ineligible voters, providing training standards for poll watchers. They also said that, you know, they can - that they would recommend extending early voting and absentee voting. Now early voting - if there are poll watchers there and they're properly trained - is, you know, is perfectly fine.

There's obviously potential for fraud there, but it can be minimized. Absentee voting is little bit more problematic and even the commission went on to say that while fraud is rare, when it does occur, absentee ballots are often the method of choice. So how - whether one should extend absentee voting and how that gets done, needs to be considered very, very carefully 'cause there are no poll watchers to make sure that votes are not being tampered with, and there are lots of cases in which absentee voting fraud has occurred.

OVERTON: I disagree with John's notion that more lawsuits is the answer in terms of voting rights. We need laws to prevent bad acts before they happen. Voters don't always have the resources to bring million-dollar lawsuits. So I reject that notion. Now, in terms of the presidential commission, I think it's important to recognize this is different from the Voting Rights Act discussion.

MALCOLM: Right.

HEADLEE: Right.

OVERTON: The presidential commission is focused on election administration. The Voting Rights Act is based on preventing discrimination. So they're different problems...

MALCOLM: That's correct.

OVERTON: ...Different solutions. Both are important, and it's important that Congress update the Voting Rights Act now.

HEADLEE: Although, we should mention that, actually, in-person voter fraud is incredibly rare, while as election fraud that deals with people who run elections and campaign workers that is, although still rare, much more likely than, say, voter fraud, statistically. But...

MALCOLM: Yeah, I'd push back on that a little bit, actually. You know, New York, for instance, just came out with investigative report. They sent 63 undercover agents into 63 different polling places to vote in person. They gave the name of somebody who had either died, moved away or was presently incarcerated. Sixty-one of those undercover agents were permitted to vote, and getting back at Spencer's...

HEADLEE: It's problematic.

MALCOLM: Yeah.

HEADLEE: I want to move on from voter fraud...

MALCOLM: Fair enough.

HEADLEE: ...Since it's a different issue. But I did - before we left, we have about a minute left...

MALCOLM: Sure.

HEADLEE: ...So I wanted to quickly ask both of you whether or not you think this proposal to update the Voting Rights Act has a chance to pass. John, do you think?

MALCOLM: Well, look, I certainly think it has a chance to pass. There will be a number of people of goodwill who will vote for it because, like Spencer, they believe it's necessary. And there will also be others who will feel pressure because they know that if you're labeled a racist, it's the kiss of death for your political career. And there's a lot of pressure for people to vote for this. So it could well pass.

OVERTON: I think it could also pass. All past updates to the Voting Rights Act have been bipartisan in terms of passing. Both Democrats and Republicans oppose discrimination. And just from a political standpoint, midterm election turnout is low traditionally. And I think, you know, the GOP certainly does not want to be the party that's perceived as blocking the Voting Rights Act and really encourage increase...

HEADLEE: Right.

OVERTON: ...Turnout in terms of a backlash against the GOP.

HEADLEE: Right. Spencer Overton is a law professor at George Washington University. John Malcolm is a senior legal fellow at the Heritage Foundation. Both joined me here in our Washington, D.C. studios. Thanks to both of you.